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Category Archives for Starting the disability process

Can I File for Disability if I am Working 20 Hours Per Week?

A common question that I see has to do with part time work.  As I have written previously, I am not a big fan of part time work, as you will see from my answer to this question that I recieved by email:

I have had fibromyalgia for many years, an autoimmune disease requiring weekly chemo injections, herniated discs in my back. I have been on FMLA for 2 years – ran out of time 4 months early this time – will be losing my insurance at work at the end of this month as I cannot afford the expense of Cobra ($650.00) per month.  I am only  able to work around 20 hrs a week which is a struggle.  I cannot quit working completely as I will have no income to support myself at all.  All of this info to answer this question – do I have to be out of work to file for disability? – J

Jonathan Ginsberg responds: J, thank you for your question.  Here is the issue in a nutshell.  At the outset, if you call Social Security to apply (800-772-1213), the first question you will be asked by the operator is whether you are working.  If you respond “yes,” there is a chance that the operator will not even take your claim, especially if you are earning more than minimum wage.

Assuming that the Social Security operator does take your claim, here is what you will face:

First, you may have a problem with your date last insured for Title II Disability.  As you may know, you have to be “insured” for Disability.  Except in the case of claimants in their 20’s Social Security looks at your earnings record during the 10 year period prior to your becoming disabled.  You need work credits that amount to five out of the last ten years.  Logically, if you are working full time, your “insured” status follows you for approximately 5 years after you stop working.  When you work part time, however, you may very well lose ground and in a worst case situation, your date last insured may have already run, meaning that you would not be eligible at all for Title II.  Unlikely, but a possibility.  You definitely need to find out your “date last insured” for Title II.

Second, I think that part time work muddies the waters.  The legal definition of disability for Social Security purposes is whether you are unable to engage in substantial activity (i.e. work) because of a medically determinable condition or conditions that has lasted 12 consecutive months, is likely to last 12 consecutive months or result in death.  When you are working part time, you create a lot of questions for Social Security.  Is your work “substantial” (this is a legal determination)?  when is your onset date?  could you perform a less demanding task 40 hours a week?

The disability adjudicators who work for the State Agencies (the initial application and reconsideration appeal decision-makers) do not have the training or authority to find your disabled when there are so many legal determiantions that have to be made.  This means that your case will end up before a judge at a hearing at some point in the future (18 months to 3 years down the road).  Judges see folks all day, every day who are not working at all.  While they admire the work ethic of someone who is working part time, the issue usually comes down to whether that claimant could perform a lighter, less demanding job full time.  I can’t cite any statistics, but I’d be surprised if the approval rate for claimants working part time is more than 20%, as opposed to around 50% for claimants as a whole at hearings.

So, in my view, part time work makes it less likely that you would be approved.  Every case is different, of course, and you should speak with an attorney who practices where you live for legal advice.

Long Term Disability Insurance Carriers Faulted for Forcing Claimants to Apply for SSDI

Earlier this week, the New York Times published an enlightening article about the practice of Long Term Disability (LTD) carriers requiring LTD beneficiaries to apply for Social Security disability.  This practice is commonplace and the reason for it is simple economics.  Most employer paid LTD policies provide that (1) any SSDI benefits received will offset the LTD carrier’s policy obligations and (2) the claimant must “repay” the LTD carrier any lump sum received for past due SSDI benefits.

An example will illustrate my point.  I have a client “Tom” who has a severe degenerative back condition and depression.  This is not a workers compensation situation because there was no specific “injury” at work – instead, Tom’s back problems arose from years of physical labor as well as a prior motorcycle accident. Tom applied for and received LTD benefits in the amount of $1,800 per month.  The LTD policy obligates Tom to apply for Social Security disability.  If Tom is approved, his SSDI benefit will be $1,500 per month.  Under the terms of the policy, the LTD carrier will use SSDI to offset its obligation – instead of paying Tom $1,800, it will only pay him $300.  In addition, the LTD carrier will demand that Tom sign over his past due benefit check as that check represents payment for months that the LTD carrier was paying benefits.

As you might imagine, this scenario does not make Tom happy.  He has to go through the hassle of applying for SSDI benefits, testifying at a hearing and dealing with the stress of the SSDI process only to see a big check from SSDI ($20,000+) go right out the door.  Most LTD carriers will not demand repayment of my attorney’s fees – they will only ask for the portion of the past due benefit check that Tom actually receives.

Several years ago I made some inquiries about the fairness of this policy and the LTD carrier’s position is that its premium structure is based on the expectation that a certain percentage of LTD beneficiaries will qualify for SSDI and therefore reduce the carrier’s exposure.  Fair enough explanation although I wonder how clear this offset policy is made to employees who are pitched to sign up for LTD policies by their employers.

By the way, many private LTD policies do not include this offset or SSDI repayment language – but if you are a prospective LTD purchaser you should ask the question.

In any case, the New York Times piece raised the question of whether this mandatory SSDI application policy was gumming up the works for Social Security disability case processing and adding to the already lengthy delays.  The Times quoted a Social Security spokesman as saying that approximately 18% of SSDI claimants acknowledged privately that they were unqualified, because they could still work and that  iIt is probable that many of these claimants were required to apply” by LTD carriers.  The spokesman went on to say that Social Security processes approximately 2.5 million applicants each year – 18% would equal around 450,000 applicants are wasting everyone’s time and causing delays for everyone.

I would suspect – although the Times does not say this – that many of these unwilling applicants do not hire lawyers, meaning that they would be considered “unrepresented claimants” by Social Security.  As any Social Security judge would tell you, unrepresented claimants take up more time and resources because their cases often require extra development and resets.

SSA is apparently floating the idea of changing its rules to treat LTD referred claims differently than regular claims.  There are also a number of “whistle blower” lawsuits that have been filed against LTD carriers for “dumping” unqualified applicants at Social Security’s doorstep.

It will be interesting to see how this all plays out.

Should I Apply for Disability if I Have Just Started to Miss Work?

I have a question about being able to work.  I recently started having headaches every day and have been seeing a doctor and having tests done. There is no way I can work under these circumstances.  What should I do?
–Richard

Jonathan Ginsberg responds:  Richard, I am sorry to hear about your situation.  Here are my thoughts.  I would advise you to go ahead and file a claim.  Social Security reps often will not accept a claim if you say that you are still working so when you file, I would choose a date that you "last worked" so that they will process the claim.

Realize, however, that if you continue to work – and Social Security records show on-going earnings – your claim will be denied on that basis without any consideration of the underlying medical problem.  I recommend that you apply as early as you can because the process can take so long.  The sooner you start, the sooner you would receive benefits.

The obvious problem – how do you survive for 12 to 24 months while SSA makes its decisions?

Next, I think that you need to work with your doctors to identify a firm diagnosis.  Chronic severe headaches can arise from many causes – migraines, high blood pressure, hormonal changes or other, more serious conditions.   Once you know what you are dealing with you will have a better idea if your condition is treatable or whether it will keep you from working for 12 consecutive months or longer.  Social Security, remember, only pays disability for cases where the medical condition will keep you out of work for 12 months or longer.

Finally, as you pursue treatment ask your doctor if he will support you in a claim for disability.  Some doctors don’t believe in the concept of disability and I have seen good cases derailed by uncompromising doctors.  If you know at the outset that your doctor will not help you, you can decide whether to stay with that physician or seek treatment elsewhere.

[tags] chronic headaches and disability, migraine headaches and social security, when to file a disability application [/tags]

Survivor of Traumatic Brain Injury Considers Applying for Disability 35 Years After Accident

In 1972 at age16 I sustained head injuries from a motorboat propeller resulting in lobectomy to my right frontal and parietal lobes. I was left with epilepsy, which has been controlled with medication from ’81 to 2004 when I had 2 seizures after I was let go from my last place of employment. The main reason I was given was a lack of flexibility. I turned 50 on July 17th. I didn’t go to a neurologist as I couldn’t afford to pay a doctor to tell me I had an accident. My medical records consist of my annual check-up so I could continue to get my medication and initial surgical procedure. As I have aged my attention span has shortened as well as my focusing ability. Am I facing too large of an ordeal?

Karl

Jonathan Ginsberg responds:  Karl, thanks for your question.  I think that your case would turn on whether a treating nuerologist would be willing to fill out a functional capacity form that identifies specific work activity limitations.  On one hand, you have been able to overcome your injury with medication for over twenty years.  A judge would therefore want to know what has changed.

I think it is entirely plausible that neurological damage such as that which you describe could get worse over the years, but, again, what you and I think doesn’t really  matter – what does the doctor say.

This is probably a case where a neuropsychological evaluation would be appropriate.  I understand from what you write that finances are an issue – unfortunately I think that is you want to have a realistic chance at winning, you will need help from a treating doctor.

Finally, don’t forget that your "insurability" for Title II Disability will run out approximately four to five years after you stop working (this is called your "date last insured").  When you apply for Disability make sure to find out your date last insured and use the earliest possible onset date – such as your last day of work.

[tags] Traumatic brain injury, neurological injury and social security disability, date last insured, functional capacity, residual functional capacity [/tags]

ADHD Child SSI claim

Ii just got custody of my nephew from cps and he has been in residential treatment centers in fort worth, we had him tested thru the school system and discovered that he is emotional disturbed and has adhd and boplar disorder2 and also has obsessive defiant disorder we also learned that we had to put him in special education classes because of an issue that he was acting out inappropriately in class(taking his clothes off in front of the other students in the class) The school system suggested that we try to apply for benefits. He is only five years old.
–Felicia

Jonathan Ginsberg responds: Child SSi claims are different than adult disability claims and different rules apply. Generally, to win a child SSi case, you have to show that the child meets a “listing.” Click on the link to view the listing most closely related to ADHD. As you might imagine ADD and ADHD diagnoses are commonly seen in Social Security courtrooms and judges are very concerned that some parents are too quick to label their children as ADHD or ADD. As such it has been my observation that you will need a treatment history and support from a treating psychiatrist or psychologist. You can learn more about the child SSI process by requesting the free report available on the web site for my child SSi disability guide.

–Jonathan

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